Videogame makers conceded console technological protection measures (TPMs) and other design decisions can impact repairs, commenting April 30 to the FTC's right-to-repair proceeding. The agency posted comments Monday in part after our Freedom of Information Act request for all such comments. The FTC, which hadn't fulfilled our FOIA request, didn't comment on whether the filings just released are all of them. "TPMs and other design choices reflect a necessary weighing of multiple risks," said the Entertainment Software Association, which noted its members include Microsoft, Nintendo of America and Sony Interactive Entertainment. "As a practical matter, the use of TPMs tends to limit the ability to make certain types of repairs to consoles and other products to authorized parties." ESA noted the Digital Millennium Copyright Act prohibits "tampering with the digital locks that copyright owners use to protect this software." "Despite these design decisions" of component integration and cutting manufacturing costs and prices as well as energy use, consoles "generally do not require proprietary tools to open or repair them," the group said in docket FTC-2019-0013. "Compatible tools, such as tri-wing screwdrivers, are inexpensive and widely available." On adhesives, which other commenters that released their filings raised concerns about, console makers sometimes use them "to optimize product design and for safety reasons," ESA said. "Adhesives serve an important safety function in preventing access to lithium-ion batteries, which present special safety considerations (both for repair and proper disposal)." Batteries also came up in the proceeding (see report in this issue.) Consumer Reports, whose comments also were just posted, "does support right to repair generally," a spokesperson emailed when we asked about CR's principles on this matter. "We have been advocating for bills in multiple states." Many states recently introduced such legislation, but some consumer tech interests oppose them (see 1903190031). ESA couldn't immediately provide us with its own right to repair principles, beyond its intellectual property concerns. CR has "developed a model state law, and are working to help enact effective right-to-repair laws in a number of states, including co-sponsoring a bill currently under consideration in California," it said: "Adverse reliability reports" to the product research and ratings provider "demonstrate the common consumer experience of having products break and need repair, and the importance of having convenient and affordable options to obtain repair." CR's model state law is here. Last week, a representative of the group testified for a New Jersey digital right-to-repair bill. It would "require manufacturers to make basic technical information and repair protocols available to independent repair shops and consumers, so consumers can more easily and cheaply get their digital devices repaired, and in some cases, fix the devices themselves," the group's spokesman noted.

Videogame makers conceded console technological protection measures (TPMs) and other design decisions can impact repairs, commenting April 30 to the FTC's right-to-repair proceeding. The agency posted comments Monday in part after our Freedom of Information Act request for all such comments. The FTC, which hadn't fulfilled our FOIA request, didn't comment on whether the filings just released are all of them. "TPMs and other design choices reflect a necessary weighing of multiple risks," said the Entertainment Software Association, which noted its members include Microsoft, Nintendo of America and Sony Interactive Entertainment. "As a practical matter, the use of TPMs tends to limit the ability to make certain types of repairs to consoles and other products to authorized parties." ESA noted the Digital Millennium Copyright Act prohibits "tampering with the digital locks that copyright owners use to protect this software." "Despite these design decisions" of component integration and cutting manufacturing costs and prices as well as energy use, consoles "generally do not require proprietary tools to open or repair them," the group said in docket FTC-2019-0013. "Compatible tools, such as tri-wing screwdrivers, are inexpensive and widely available." On adhesives, which other commenters that released their filings raised concerns about, console makers sometimes use them "to optimize product design and for safety reasons," ESA said. "Adhesives serve an important safety function in preventing access to lithium-ion batteries, which present special safety considerations (both for repair and proper disposal)." Batteries also came up in the proceeding (see report in this issue.) Consumer Reports, whose comments also were just posted, "does support right to repair generally," a spokesperson emailed when we asked about CR's principles on this matter. "We have been advocating for bills in multiple states." Many states recently introduced such legislation, but some consumer tech interests oppose them (see 1903190031). ESA couldn't immediately provide us with its own right to repair principles, beyond its intellectual property concerns. CR has "developed a model state law, and are working to help enact effective right-to-repair laws in a number of states, including co-sponsoring a bill currently under consideration in California," it said: "Adverse reliability reports" to the product research and ratings provider "demonstrate the common consumer experience of having products break and need repair, and the importance of having convenient and affordable options to obtain repair." CR's model state law is here. Last week, a representative of the group testified for a New Jersey digital right-to-repair bill. It would "require manufacturers to make basic technical information and repair protocols available to independent repair shops and consumers, so consumers can more easily and cheaply get their digital devices repaired, and in some cases, fix the devices themselves," the group's spokesman noted.

American Electric Power and other electric utilities told the 9th U.S. Circuit Court of Appeals that the FCC’s pole attachment order violates the Telecom Act and should be overturned. The electric utilities' challenge to an August ruling/order barring local infrastructure moratoriums and revising pole-attachment processes is being heard as part of a broader challenge to last year’s infrastructure orders, in docket No. 18-72689 (see 1904180006). “The Act states that an electric utility may deny a cable television system or any telecommunications carrier access to its poles, ducts, conduits, or rights-of- way on a nondiscriminatory basis ‘where there is insufficient capacity and for reasons of safety, reliability and generally applicable engineering purposes,’” the utilities said (in Pacer). “Congress implemented this exception to ensure that the placement of attachments on existing utility poles would not endanger or compromise the safety of the public or the safety, reliability and integrity of the nation’s electric and communications infrastructure.” Historically, there are three zones on a utility pole -- electric lines on top, with a safety zone under them, and then communications space, the companies said. “The Order dramatically changed course and created a ‘self-help remedy’ to allow new attachers to use a utility-approved contractor to complete required make-ready work above the communications space (including in the electric supply space), when utilities and existing attachers have not met the FCC’s make-ready work deadlines to perform work preparing a pole for a new attachment."

A 4th U.S. Circuit Court of Appeals panel shot down a Dish Network motion (in Pacer, docket 18-1518) asking for a stay of a $61 million verdict mandate in Telephone Consumer Protection Act litigation (see 1905310003). Dish sought the stay while it files a petition for a Supreme Court hearing, and said without the stay, those payments "likely would be impossible to unwind" if SCOTUS grants review and reverses. Dish said the questions it plans to raise in its cert petition include whether people who suffer only bare statutory harm can be identified as class members and recover damages. The panel -- Circuit Judges Harvie Wilkinson and Robert King and U.S. District Judge Irene Berger -- denied the motion (see here, in Pacer) Monday without comment. Dish didn't comment Tuesday.

FCC Commissioner Brendan Carr is “leaning” toward a plan to loosen radio subcap limits that leave some limits in place in cities but open up ownership limits in smaller markets, he said at a Federalist Society luncheon Tuesday. Carr said he hasn't made a final decision. He acknowledged the plan proposed by NAB and described in the 2018 ownership quadrennial review NPRM is “consistent” with where he's leaning.

PRBA-The Rechargeable Battery Association hopes the FTC carefully considers safety issues “as it explores repair options associated with lithium ion batteries and the devices they power,” commented the group in docket FTC-2019-0013.

The day after the House working group had its first meeting to hammer out changes to the U.S.-Mexico-Canada Agreement, the renegotiated NAFTA, Rep. Jan Schakowsky, D-Ill., Rep. Rosa DeLauro, D-Conn., a freshman Democrat from a swing district, one Republican and 12 other Democrats introduced a bill that seeks to shorten the biologics exclusivity period in U.S. law to five years. The new NAFTA requires Mexico to raise its exclusivity period from five to 10 years, and Canada to raise its period from eight to 10 years. Current U.S. law is 12 years.

The Animal and Plant Health Inspection Service is issuing a final rule to overhaul its regulations on importation and interstate movements of plant pests. The agency’s new regulations codify and clarify existing permitting procedures, as well as create new lists of exempt plant pests and biological control organisms that APHIS determines present no risk to plants and plant products. The final rule also sets new packaging requirements for plant pests, biological control agents and soil, and revises APHIS’s regulations on importation of soil, stone and quarry products. The new regulations take effect Aug. 8.

The current FCC is unlikely to consider the national TV ownership cap or further relax broadcast ownership rules, said Gray Television Chief Legal and Development Officer Kevin Latek on a panel of broadcasting executives Thursday at S&P Global's Kagan Media Summit. The agency will “accomplish essentially nothing” between now and 2020, Latek said. Things could be different “next time” if the Republicans retain the White House, Latek said in New York, though “we'd probably need a new chairman.” The FCC didn't comment.

The Supreme Court handed down what's essentially a middle of the road decision in a junk fax case, PDR Network v. Carlton & Harris Chiropractic, but its decision has implications for the FCC and the communications bar, lawyers following the case said Thursday. The opinion was expected to answered the question of whether the FCC has the long-assumed power to exclusively implement the Telephone Consumer Protection Act (see 1904250006) but stopped well short of that. The issues raised appear far from settled for the FCC, since four of the justices would have gone further, lawyers said.